Citation NR: 9631929
Decision Date: 11/08/96 Archive Date: 11/22/96
DOCKET NO. 94-07 426 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to a total rating for compensation based on
individual unemployability due to service-connected
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Andrew C. Mackenzie, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1944 to April
1946.
This matter comes before the Board of Veteransí Appeals
(Board) on appeal from a May 1992 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected residuals of
a left knee replacement have resulted in unemployability.
The veteran emphasizes that this disability prohibits him
from all forms of gainful employment. He requests,
therefore, that he be granted a total rating based on
individual unemployability due to his service-connected
disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the preponderance of the evidence is against a grant of a
total rating based on individual employability due to a
service-connected disability.
FINDINGS OF FACT
1. Sufficient evidence necessary for an equitable
adjudication of the veteranís claim has been obtained by the
RO.
2. The RO has granted the veteran service connection for
residuals of a left knee replacement, evaluated as 60 percent
disabling from October 1991, which is the maximum evaluation
allowable under the applicable diagnostic code.
3. The veteranís service-connected residuals of a left knee
replacement do not preclude him from obtaining or retaining
some form of substantially gainful employment.
CONCLUSION OF LAW
A total disability rating based on individual unemployability
due to the service-connected disability of residuals of a
left knee replacement is not warranted.
38 U.S.C.A. ß 5107 (West 1991); 38 C.F.R. ßß 3.340, 3.341,
4.16 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteranís
claim for unemployability benefits is well-grounded within
the meaning of 38 U.S.C.A. ß 5107(a). See Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990). That is, the veteran
has presented a claim which is not implausible when his
contentions and the evidence of record are viewed in the
light most favorable to the claim. The Board is also
satisfied that all relevant facts have been properly and
sufficiently developed.
The Board also notes, as an initial matter, that the
veteranís original claim file, covering his service records
and his veteran records prior to 1979, is not available. The
veteranís November 1979 rating decision notes that, prior to
that decision, the veteran had been granted service
connection for a left knee condition and had been evaluated
under Diagnostic Code 5010 at a 40 percent disability
evaluation, based upon a compensable injury on combat status
during World War II and effective October 1962. The November
1979 rating decision, on the basis of diagnoses of a torn
medial meniscus and osteoarthritis, secondary to trauma,
granted the veteran a temporary total disability rating under
Diagnostic Code 5010 effective May 1979, to be reduced back
to a 40 percent disability evaluation effective July 1979.
Following the veteranís total knee replacement in July 1990,
a January 1991 rating decision granted a temporary total
rating, under 38 C.F.R. ß 4.30 (1995) and effective July
1990, a 100 percent schedular rating under Diagnostic Code
5055 for one year effective October 1990, and a reassigned a
40 percent rating for residuals of a left knee replacement,
with traumatic arthritis effective October 1991. As the 40
percent rating had been in effect since October 1962, a
period exceeding twenty years, it is protected under
38 U.S.C.A. ß 110 (1991). This evaluation was increased to
60 percent under Diagnostic Code 5055 for residuals of a left
knee replacement in a December 1991 rating decision. A
subsequent rating decision, dated May 1992, denied the
veteran entitlement to a total evaluation based on individual
unemployability and continued the veteranís 60 percent
evaluation under Diagnostic Code 5055. It is from this
decision that the veteranís appeal arose.
The veteran initially injured his left knee in service. He
underwent a left knee arthroplasty in July 1990 following an
extensive history of treatment of his left knee following
service. The staff physician who treated the veteran noted,
in a VA hospital summary dated August 1990, the veteranís
history of sustaining a shrapnel injury to his left distal
femur, subsequently developing osteomyelitis for which he
underwent treatment, suffering pain with ambulation, and
occasionally using a brace for his knee. X-rays revealed
tricompartment degenerative joint disease. The physician
indicated that the veteran could benefit from a total knee
arthroplasty. A physical examination of the left knee
revealed well-healed incisions medially, range of motion from
7-110 degrees, and pseudolaxity in the knee with pain on the
medial, lateral, and patellofemoral joints.
The operation was performed without difficulty. Some
difficulty was noted with complete extension, and the veteran
went through aggressive therapy for this problem.
Hospitalization, including in-house physical therapy, lasted
approximately two weeks. By the time of his discharge, the
veteran had extension to -12 degrees and flexion to
approximately 75-80 degrees. Wounds were healing well and
intact. There was no sign of infection upon discharge from
the hospital. A rating decision dated January 1991 granted a
temporary total rating for residuals of left knee replacement
under 38 C.F.R. 4.30 (1995) effective from July 1990, a 100
percent assigned schedular rating under Diagnostic Code 5055
for one year effective October 1990, and the 40 percent
disability rating effective October 1991.
Following the veteranís knee replacement operation, he
continued to have pain in his knee. A compensation and
pension examination by Scott Luallin, M.D., dated October
1991 noted that the veteran had pain in the posterior aspect
of his knee. The veteran indicated that he had previously
been told by an orthopedic surgeon that he had spurs along
the posterior aspect of his left knee. The veteranís knee
did have giving way, but there was no significant swelling.
On physical examination, the veteranís range of motion was -
15 to 90 degrees. He had grade 2 laxity medially and
laterally. Tenderness to palpation posteriorly was noted.
The impression was of status post left total knee
arthroplasty with probable posterior osteophytes which were
symptomatic. A December 1991 rating decision increased the
veteranís evaluation for residuals of a left total knee
replacement with post traumatic arthritis to 60 percent under
Diagnostic Code 5055, effective October 1991.
VA outpatient treatment reports showed the veteran
complaining of pain in his left knee in January 1992. A
March 1992 outpatient treatment report indicated that the
veteran was doing better and would continue to be followed
clinically.
The veteran made his claim for entitlement to a total
evaluation based on individual unemployability in February
1992 and, in support of his claim, submitted a letter from
[redacted], the president of [redacted] Business Opportunities.
Mr. [redacted] letter verified that the veteran had to be put
off work periodically because of his knee injury. Mr. [redacted]
noted that the veteran fell in June 1978 and further injured
both his knee and his back. At that time, the veteran was
dismissed from his duties because he was no longer able to
work up to capacity. He made several unsuccessful attempts
to pass a physical examination subsequently. The letter also
relates that the veteran had back surgery and a full knee
reconstruction. Mr. [redacted] further indicated that the anguish
in the veteranís expressions resulting from the worsening of
his injuries from deterioration and age was palpable.
Following receipt of this letter and the 1992 VA outpatient
reports, and noting that the veteran was 68 years old with
three years of high school education, the RO denied the
veteranís claim for entitlement to a total evaluation based
on individual unemployability in a May 1992 rating decision.
Subsequent to the appealed May 1992 rating decision, the
veteran has received both VA and private treatment for his
left knee on several occasions. A VA muscles examination
dated August 1992 notes the veteranís complaints of cramps
starting in the mid-thigh area of his left leg and primarily
occurring in the left mid-lateral thigh behind the knee and
in the upper posterior calf area; the veteran observed that
he had roughly two episodes of cramping per day. A specific
evaluation noted left anterior and posterior thigh atrophy
and left posterior calf muscle atrophy. No muscles were
penetrated. A 25 cm. anterior vertical scar over his left
knee, approximately 3-4 mm. in width, was noted as well-
healed and with no tenderness or sensitivity. A 15 cm. L-
shaped scar was noted on the left lateral aspect of his knee;
this scar varied from 5 to 8 mm. and was nontender, not
sensitive, and had no evidence of keloid formation. There
was no evidence of adhesions or damage to the tendons. The
examiner noted severe pain elicited from a left knee reflex
and decreased pin prick from approximately 6 cm. below the
left inguinal line all the way distally throughout the left
extremity. Regarding strength, his left hip flexor was fair
to poor, his knee extensor was fair to poor, his left
dorsiflexion was fair, his left plantar flexion was fair, and
some decreased limited range of motion in his left knee was
noted. Mild to moderate pain was evident with testing of
muscle strength in the left leg. No evidence of muscle
herniation was noted. The assessment was of muscle atrophy
of the left anterior and posterior thigh and left calf,
moderate muscle weakness in the left leg, and intermittent
muscle cramping of the left leg.
A physical examination from the same date, covering both
knees, revealed no swelling, though significant atrophy of
the left thigh with decrease in circumference of the thigh
was noted. Ligaments were overall grade zero. Range of
motion was flexion on the right knee of 130 degrees, left
knee flexion of 100 degrees, right extension actively to -5,
passively to full extension. Extension on the left was -5
degrees. The diagnoses were degenerative arthritis of the
right knee with right knee flexion contracture of
approximately 5 degrees, and status post left total knee
arthroplasty, with symptoms persisting. The examiner noted
that the degenerative arthritis of the right knee was most
likely related to the traumatic arthritis in the left knee.
A radiological examination, also from the same date,
contained the impressions of mild degenerative arthritic
changes with a loose body or group of loose bodies in the
region of the tibial plateau, status post right total knee
arthroplasty with prosthesis in place, and no loosening
demonstrated. (It is possible, however, that the post
arthroplasty impression may have been intended to describe
the left knee, upon which the arthroplasty had been
performed.)
A VA consultation report dated September 1992 noted the
veteranís complaints of left leg pain. A biofeedback
assessment (surface EMG of various aspects of the thigh and
calf) suggested cramping or spasm as well as muscle injury.
Muscle action, as in standing and walking, produced
increasing readings over a period of several minutes.
A VA examination dated February 1993 noted the veteranís
complaints of medial compartment pain and occasional popping
in the left knee. Upon examination, the veteran had full
extension and approximately 100 degrees of flexion. The
veteran had no abnormal laxity but did have some hypesthesia
on the left side. Ligaments were all grade zero. The
veteran flexed to 130 degrees and had full passive extension,
though he lacked approximately 5 degrees of active extension.
Knee x-rays revealed mild degenerative joint disease. There
was evidence of loose body, but x-rays shoed no symptoms
related to loose body. The diagnosis was status post left
knee arthroscopy with persistent symptoms. The examiner also
diagnosed degenerative arthritis of the right knee but noted
that the right knee condition appeared to be unrelated to the
left knee condition and the inservice shrapnel wound to it.
The veteranís claim file also contains medical records of
physical therapy from St. Maryís Hospital in Blue Springs,
Missouri, dated July and August 1994, October through
December of 1994, and June 1996. These records indicate the
veteran continued to complain of pain and popping in the left
knee, evidently resulting from scar tissue and the femur
resting medial to the tibia, which caused the patella to
track improperly. Some limitation of range of motion was
noted as well. However, a record dated December 1994
indicated that the veteran was able to walk one-half of a
mile. These records also noted right groin pain.
Also included in the veteranís file are several letters and
reports indicating work-related difficulties allegedly
resulting from the veteranís service-connected disability. A
Continuation Sheet for Disability Determination from February
1980 indicates that the veteran was limited to lifting up to
20 pounds occasionally and ten pounds frequently; was capable
of standing and walking less than six hours a day; precluded
from bending, squatting, kneeling, crouching, and crawling;
and would be limited to only a narrow range of light work.
This form also indicated the veteranís age, lack of
education, and prior occupations which required physical
exertion beyond his current capabilities.
Additionally, two drafts of a letter from [redacted],
president of [redacted], dated November 1993 and
October 1994 indicate that the veteranís left knee condition
disqualified him for work as a truck driver or a farm machine
delivery person. Specifically, the veteran was unable to
sharply and precisely work the foot controls of an 18-wheel
truck, enter the cab of a delivery truck several times per
day, secure leads to mount trailers, or set up and pre-
deliver farm machinery because of heavy lifting and inability
to pass a Department of Transportation physical examination.
In a VA hearing dated October 1994, the veteran said that his
left knee condition prevented him from attaining gainful
employment. He further described the physical problems that
led to his leaving his position with [redacted] Company.
Also, the veteran noted that, as a result of his left knee
disability, he could not go up or down stairs.
The veteran reasserted his belief that his left knee
disability would prevent him from maintaining gainful
employment in a lay statement received by the VA in May 1995.
In pertinent part, a total disability rating based on
individual unemployability may be assigned where the
schedular rating for a veteranís service-connected disability
is less than 100 percent and when it is found that the
veteranís service-connected disability prevents him from
being able to secure or pursue substantially gainful
employment. 38 C.F.R. ßß 3.340, 3.341, 4.16 (1995). Under
38 C.F.R. ß 4.71a, Diagnostic Code 5055 (1995), the maximum
available rating for residuals of knee replacement is 60
percent, following the one-year assignment of a 100 percent
schedular rating following prosthesis implementation.
Based upon a review of the veteranís claims folder, the
veteranís left knee disorder has lessened in severity
following his July 1990 knee replacement. The physician who
treated the veteran in that operation noted that range of
motion in the left knee had improved, and the veteranís
wounds were healing well and were not infected. Subsequent
examinations have revealed only moderate limitation of range
of motion. The veteranís complaints of pain have been noted,
and there has been evidence of loose body, but no loosening
has been shown on x-ray. Furthermore, the veteran has
reported to his private physical therapist that he could walk
one-half of a mile.
It is apparent that the veteranís service-connected left knee
disability has impacted primarily upon his ability to
function in various occupations involving physical activities
such as heavy lifting. While the Board recognizes that the
veteran may no longer be able to work in his prior capacities
as a truck driver or as a farm machine delivery person, it
has not been shown that his service-connected disability,
standing alone, precludes his participation in these
occupational activities or in all forms of sedentary
employment.
Consideration of this matter is limited to the issue
certified on appeal. The Board has noted the veteranís
complaints of pain in the groin, the back, and the right
knee, but only the service-connected left knee disability
warrants consideration with regard to a total disability
rating for compensation based on unemployability. 38 C.F.R.
ß 4.16 (1995). The Board has also noted that the veteran is
currently 73 years of age. However, age may not be
considered as a factor in evaluating service-connected
disability or unemployability. 38 C.F.R. ß 4.19 (1995).
The veteranís failure to obtain an employment position is not
dispositive, as it does not appear that the positions that
the veteran applied for were well-suited to his occupational
capabilities. The evidence of record does not disclose that
the veteran was unemployed, had difficulty obtaining
employment other than in the specific areas noted, or was
incapable of performing the noted activities solely because
of his left knee disorder. The Board sympathizes with the
veteranís difficulties in seeking employment, but the sole
fact that he is unemployed or has difficulty obtaining
employment is insufficient for this claim. ďThe question is
whether the veteran is capable of performing the physical and
mental acts required by employment, not whether the veteran
can find employment.Ē Van Hoose v. Brown, 4 Vet.App. 361,
363 (1993). Consequently, the Board concludes that the
preponderance of the evidence is against the veteranís claim
that the service-connected disability, in and of itself, is
of such severity as to preclude his participation in all
forms of substantially gainful employment. Accordingly, a
total disability rating based upon individual unemployability
due to a service-connected disability is not warranted.
ORDER
Entitlement to a total disability rating based on individual
unemployability due to service-connected disability is
denied.
CHARLES E. HOGEBOOM
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 13 -